The "Strong Medicine" of the Overbreadth Doctrine: When Statutory Exceptions Are No More Than a Placebo

Article excerpt

I.   INTRODUCTION

II.  THE MILLER OBSCENITY STANDARD AND STATUTORY
     EXCEPTIONS
     A. Overview
     B. Nonobscenity Contexts

III. THE OVERBREADTH DOCTRINE IN FIRST AMENDMENT
     JURISPRUDENCE

IV.  IMPACT OF UNITED STATES V. STEVENS
     A. Background
     B. Supreme Court Review
     C. The Rejection of Statutory Exceptions
     D. Justice Alito's Dissent
     E. Congress's Response to Stevens

V.   THE IMPORTANCE OF THE EXCEPTIONS CLAUSE
     A. Relevance
     B. The Exceptions Clause's Failure to Protect from
     Overbreadth
     1. Differences in Statutory Subject Matter
     2. The Limited Narrowing Function of the
        Exceptions Clause
     3. The Exceptions Clause is Meaningless
     4. Different Standards of Overbreadth Analysis
     5. Strategic Judicial Behavior

     C. Usefulness of the Exceptions Clause

VI. CONCLUSION

I. INTRODUCTION

In United States v. Stevens, the Supreme Court refused to consider depictions of animal cruelty as a form of speech outside of First Amendment protection. (1) Consequently, the Court struck down the federal statute criminalizing such depictions as overbroad. (2) Stevens is largely cited to demonstrate the Supreme Court's reluctance to create a new category of speech that is outside of First Amendment protection. (3) However, Stevens demonstrates another important proposition in First Amendment jurisprudence--that a statutory exception modeled after the Miller v. California obscenity standard is not a dependable way to protect a nonobscenity statute. (4)

Legislatures whose regulations are likely to be challenged on free speech grounds sometimes include statutory exceptions as a way to limit the scope of the regulation and avoid constitutional invalidation from the "strong medicine" (5) of the overbreadth doctrine. Often, statutory exceptions borrow language from the obscenity standard formulated in Miller. The Miller exceptions clause prevents a statute from criminalizing behavior that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. (6) The Stevens holding significantly undermines the usefulness of the Miller statutory exceptions in nonobscenity statutes and calls into question the constitutionality of existing statutes using these statutory exceptions.

Part II of this Note will discuss the use and prevalence of statutory exceptions modeled after the Miller obscenity test. Part III of this Note will review the role of the overbreadth doctrine in First Amendment jurisprudence. Part IV of this Note will examine the reasoning and implications of the Supreme Court's ruling in Stevens. Finally, Part V of the Note will explore the possibility that, in light of recent Supreme Court action, statutes that borrow from the exceptions clause in the Miller standard may be at risk of invalidation. Therefore, legislatures should consider modifying some existing statutes and not using the Miller exceptions clause in new legislation.

II. THE MILLER OBSCENITY STANDARD AND STATUTORY EXCEPTIONS

A. Overview

The Supreme Court has a storied history of struggling to formulate a proper definition of obscenity. (7) Most notoriously, Justice Stewart, in a concurrence, had the following comments on this process: "perhaps I could never succeed in intelligibly [defining obscenity].... But I know it when I see it...." (8) Eventually, the Court formulated the present-day obscenity standard in Miller v. California.

In Miller, California convicted the defendant of obscenity for mailing unsolicited brochures that contained descriptive printed material and

pictures of men and women engaged in a variety of sexual activities. (9) In a previous decision, the Court recognized that obscene materials are not protected by the First Amendment, (10) but the Court struggled to formulate a proper definition for obscenity. By declaring obscenity a special category of speech outside of First Amendment protection, the Court allows obscenity statutes to be scrutinized with a rational basis standard of review. …